Monday, June 18, 2012

Supreme Court Denies Review of Church Property Cases

[UPDATE: Acting with the speed of light, Anglican Unscripted already has my commentary on this morning's denials of review here, as part of a special episode released today. Kudos to Kevin and George for the quick work.]

The list of orders from their June 14 conference is now online, and it shows that less than four of the Supreme Court's Justices were interested in reviewing the two petitions from parishes who lost their properties in the courts below. It takes a vote of at least four Justices to grant review, and the two cases (the Timberridge case from Georgia, No. 11-1101, and the Bishop Seabury case from Connecticut, No. 11-1139) are shown as having review denied. (The latter case appears on p. 6 of the orders list, because it also required a ruling on a pending motion to allow the amicus brief by St. James Newport Beach, et al., to be filed.)

The Court granted review in only one case today, a result which surprised the professional observers at SCOTUSblog, who pointed out that the Court has granted review in only 19 cases thus far -- not enough to fill its argument slots in October to December of this year. (The case in which review was granted was one of the thousands of in forma pauperis petitions which the Court receives every year.) The Court also issued a number of opinions in pending cases today, which showed that (as to these cases toward the end of the current term) it is very divided, although not always on ideological lines. (In one case, Justice Scalia joined the "liberal" justices Kagan, Ginsburg and Sotomayor in dissent.)

The result today for church property law is regrettable, because it means that the morass of State court decisions interpreting Jones v. Wolf, 443 U.S. 595 (1979) will remain unresolved, with some States allowing certain churches to bypass their legal requirements for the creation of a trust, and with other States requiring that all churches comply with their local trust laws. Thus the outcome of any church-parish dispute over property will continue to turn upon the State in which it arises: if the parish is in California, Connecticut, Georgia, Massachusetts, New Jersey, New York or Ohio, it will most likely lose its property; but if it is in Alaska, Arkansas, Louisiana, Missouri, New Hampshire or South Carolina, it will most likely keep its property. And if it is in Kentucky or Pennsylvania or Virginia, then the courts could hold that any national trust canon is ineffective to create a trust, but still find that a trust existed anyway.

Fortunately, the denial of review will have little or no bearing on the three pending property lawsuits involving entire dioceses which left the Church (Quincy, Fort Worth and San Joaquin). That is because the Church's Dennis Canon has no application to real or personal property owned by dioceses. Furthermore, the fact that the Supreme Court declines to review a lower court's decision is not a judgment on the merits -- it does not mean that the Court views that case as having been correctly decided. Its net effect, therefore, will be to leave the various States' results exactly as they are.

The interesting fact is that we have never before had a Supreme Court on which there were no members of Protestant denominations. The current Court is made up of six Roman Catholics (Chief Justice Roberts and Justices Kennedy, Scalia, Thomas, Alito and Sotomayor) and three Jews (Ginsburg, Breyer and Kagan). Whether that is what determined that there were not enough justices interested in the property disputes of Protestant churches is something we shall probably never know. Also, none of the justices who served on the Court in 1979, when they issued the Jones decision, is still on the bench today, so any institutional history that attended that case has been lost.

The interpretation of Jones in the courts will remain unsettled, alas, at least until we have a different Court (and even then, there are no guarantees). Writing before the results of last Thursday's conference were announced, this blogging law professor, I think, got the question just about right:
... The problem arises from the Court's muddled resolution of the role civil courts may play in determining disputes concerning ownership of church property. In Watson v. Jones, 80 US (13 Wall.) 679 (1871), the Court ruled that civil courts must first determine the type of church involved -- basically congregational (under control of the immediate congregation) or hierarchical (individual churches controlled by an umbrella church). With respect to the latter type, civil courts were to defer to the internal rules of the umbrella church. A bit over a century later, the Court, in Jones v. Wolf, 443 US 595 (1979), ruled that civil courts must eschew any inquiry into "ecclesiastical polity or doctrine," but must be "completely secular" and rely "exclusively on objective, well-established concepts of trust and property law." But Jones did not overrule Watson, and the result is that five state supreme courts and one federal circuit hold that internal church rules are irrelevant if they conflict with secular trust and property law, but four state supreme courts hold that internal church rules govern even if they do not comport with secular trust or property law.  
This problem arises in the case of hierarchical churches, such as the Episcopal Church and the Presbyterian Church. The problem doesn't arise in the case of the Roman Catholic Church because deeds to parish property are almost universally in the name of the relevant Catholic Bishop. That's not so with Episcopalians and Presbyterians, where deeds to local church property are often in the name of the local church. Enter the so-called "Dennis Canon," in the case of the Episcopal Church. The umbrella Episcopal Church amended its constitution (the Canons) to provide that all local church property is held in trust for the national church. Of course, it is an axiomatic principle of trust law that an express trust can be created only by the settlor, not by unilateral action of the beneficiary. Yet, the Dennis Canon purports to create a trust by the action of the beneficiary alone. This gambit has been approved by those state courts that read Jones to mean that civil courts may defer to internal church rules, even when they are at odds with secular principles of trust law. On the other side are those courts that hold that secular principles of trust law control when internal church rules violate those principles.

Given the turmoil in the Episcopal Church there is certain to be even more of these disputes. Guidance is needed. I'm not agnostic on this issue -- I think that secular principles of trust and property law ought to control, regardless of what the internal church rules may be. There are at least two reasons for this: 1) Civil courts are obliged to apply secular law to resolve ecclesiastical property disputes; they can't do this if they look to church rules that the church itself proclaims; 2) Permitting churches to declare themselves to be the beneficiaries, in trust, of property owned by others, allows churches to exercise power that no secular entity could ever exercise. In short, by a modest extension of the rationale of Larkin v. Grendel's Den, 459 US 116 (1982), governmental blessing of this extraordinary power amounts to a forbidden establishment of religion.
The conclusion he reaches is undoubtedly correct, but the Supreme Court apparently is not yet ready to go there. Churches and their parishes will continue to suffer from the inability of the courts to deal with religious entities -- but isn't that just what St. Paul warned us about, so long ago?


  1. What does it mean that in one case, St. James Anglican was granted leave to file as friend of the court? Is that a filing with the state court or with the SCOTUS? If with the Supreme Court, what good does the amicus filing do if SCOTUS is not going to review the case?

  2. Since I returned to Mississippi, I've had no choice but to straddle the fence between ACNA and TEC. I guess I was hoping that one day, we would have all this cleared up, and conservative Anglicans across lines could come together to carry out the mission of Christ without all the poisonous politics that 815 forces us to deal with. Until then, I've been putting off a decision as to whether to stay in decaying TEC (the name 'episcopal' is ruined in America and even the orthodox parishes are suffering from this toxic relationship they are forced to maintain), return to an area with more ACNA parishes, or join another denomination (maybe United Methodist...I would miss the sacraments, but I can't go to Rome). Since God has chosen not to end this current property lottery through the court, should I start to weigh my options again?

  3. VB, the Court was simply allowing the amicus brief filed by St. James to be considered as part of the case before it took final action to deny review. Motions in cases not yet acted upon by the Court are decided and announced as part of the final decision whether or not to accept the case for review. But the Court had all the briefs while it was considering whether or not to grant review, and the order simply confirms that it read all of the briefs before acting.

  4. RR, the Supreme Court has abdicated its responsibility in this area, and left the parishes and their members to fend for themselves. This is undoubtedly part of the test that God prepares for those who would sincerely follow His Word.

    This denial does not mean that The Falls Church, for instance, has no chance of getting a reversal in the Virginia Supreme Court. The lower court's decision did not turn on the Dennis Canon-kind of unilaterally imposed trust, but on an implied trust which the judge derived from picking and choosing his facts.

    You can be orthodox either in ECUSA or in ACNA, just so long as you are under a bishop who gives full room to the orthodox. (In my diocese, for instance, he is aware that the balance of power depends on his not doing anything to upset the orthodox faction.) I much prefer staying within and fighting the leadership in every way I can, but that is a personal choice, and I know for priests that it is a tough one. It's easier for us canon lawyers. ; >)

  5. Curmudgeon-How will this affect the Parishes of the San Joaquin Diocese that are incorporated?

  6. It won't affect them at all, because the cases which were denied review came from Georgia and Connecticut. The denial of review, as I wrote, is not a ruling on the merits, and so the law of California (as defined by the California Supreme Court) remains as it was before.

    That said, the Diocese of San Joaquin never acceded to the Dennis Canon (or any other ECUSA canon), and also adopted a canon declaring expressly that there were no trust interests in parish property except as declared by a proper trust document.

    So one of the points we are arguing in those cases is that the California decision in the Episcopal Church Cases, and others like it, have no application to what went on in San Joaquin. And the San Joaquin cases are still a long way from being decided.

  7. The Reformed Reinhardt said...

    "or join another denomination (maybe United Methodist...I would miss the sacraments, but I can't go to Rome). Since God has chosen not to end this current property lottery through the court, should I start to weigh my options again?"

    When considering other places to go, don't forget that there is another option: the Eastern Orthodox.

    There is a church in Memphis and may be others closer to you.

    Once you contact one, they should be able to direct you to others. And if you can find a Western Rite church, they use a liturgy that is similar to the Book of Common Prayer.

    I felt in 1996 that the Episcopal Church had left me - I didn't leave it. By God's grace, in 2001 I met an Orthodox priest, started studying what the Orthodox believe, and a year later was chrismated. I only wish I could have made the move sooner, but I just didn't know....

  8. Thanks AC: I have thought a lot about the Orthodox faith, even though I have yet to find an opportunity to visit or attend a mass.

    There is a lot I like about the Eastern Orthodox Church, which I think is much closer to the 1st century church than Rome claims to be. There are a few Orthodox churches in the Memphis area, about an hour from where I live. However, in my hometown (5 minutes from Jackson, Miss) there is a fairly large Orthodox church there. I have applied for a job at a community college outside of Jackson, so if I get the position (a long shot in this era of high unemployment and high, high underemployment in higher education), that is one option for us.

    However, if we were to leave this little town, then we would have other options as well: Saint Stephen Reformed Episcopal, and then All Saints in South Jackson and Chapel of the Cross in Madison, MS would be other options.

    For the past two years we've lived in a town (about 6,000 people) that is about 35 miles from everywhere. We came from the Diocese of Fort Worth, and the man who holds the title of 'Episcopal priest' here is such a heretic (someone obsessed with creating a faith palatable for 'reasonable people'--a.k.a. Southern Democrats--that Jesus is just the mascot-face of his propaganda), that we couldn't make it 7 months there.

    Once a month we visit the church in my wife's hometown (the rector there is totally solid) and then once a month we visit either the orthodox ECUSA church about 5 miles from my parent's home, or the ACNA church across town. The rest of the time, we don't quite know what to do.

    In all of this, I often think of my old parish in Texas, the people there, our wonderful priest who baptized both our daughters, and I kick myself for leaving. It feels like we've been 2 years without a spiritual home.

    But Christ has strengthened me, my wife...all of us, and I have faith he will put us somewhere where we are needed.

    Bless you!

  9. I agree with the comments made by the blogging professor that appear on your post, however, I prefer to describe what results in some states in the existing situation as one that involves governmental prohibition on the free exercise of religion rather than governmental establishment of religion (although the difference may not be all-important). The gist of the current situation is that the Dennis Canon is being applied in situations where an overwhelming majority of an ECUSA parish is on record as having voted to end its affiliation with ECUSA simply in order to worship as they please. However, in order to accomplish this end, some jurisdictions have ruled in favor of the imposition on the parish of a forfeiture of the property of the parish. I find such imposition through governmental power amazing in our democratic republic.

  10. Actually, rather than a governmental establishment of religion as described by the professor, I'd describe what occurs in some jurisdictions as a prohibition on the free exercise of religion through the governmental imposition of the Dennis Canon and a concomitant forfeiture of parish property on parishes simply wising to worship as they please apart from ECUSA. However described, I find the result as pretty amazing given Amendment I.

  11. I realize I'm six months late in this conversation but hoping perhaps you may still he able to offer some useful perspective as we try to navigate a property dispute in the United Methodist Church, in which we feel that our rights and religious freedoms have been sorely trampled.

    While some of your readers may disagree because of who we are, it's whose we are that has sustained us though the tumult of our church affirming our "sacred worth" while drop kicking us to the curb.

    For the last seven years I've serve as the Pastor in Charge for the largely LGBT congregation at Crescent Heights United Methodist Church in West Hollywood, CA until its involuntary discontinuance by the regional judicatory of the UMC in June 2011.

    Originally targeted for closure in spring of 2008 on the heels of the CA Supremes' historic marriage equality decision our small but vital, debt-free, and growing congregation in whose name Title to the church property is vested, jumped every hoop place before us only to have the bar move each time.

    The actual reason for the discontinuance remains decidedly unclear (it depends on who is asking and who is asked - which of course leaves everything on the table including the obvious, which of course the good liberals of the Cal-Pac Annual Conference ar loath to own. Add the sea-change in the balance of power come to fruition in Tampa and it's hard to miss the lavender elephant in the midst ofi ti all.

    By placing CHUMC on the "Dead Church Walking"of churches to be discontinued in 2008 -- fully 16 months before undertaking the official assessment to determine if that was the appropriate placement, speaks for itself.

    Clearly what we are left feeling is that it's just a good old fashion land grab that would blush the cheeks of even old man Mulhollland.

    Just as clearly its the UMC's unilaterally imposed supernatural trust declaration that gives rise arrogance of this kind of"taking," which in any other context would be plain and simple "racketeering," particularly given that the local church has never in 98 years granted an irrevocable trust to the benefit of the denomination and the congregation remains opposed.

    Is my understanding correct that most of the church property cases have involved a parish trying to leave the fold as opposed to being thrown out?

    If so, I wonder if you would anticipate that the difference between the two would have any meaningful bearing on the outcome of a case.

    It just seems to me that the conflicts of interest, self-dealing, collusion, and down right dishonesty are off the charts even for a church.

    That the church in question is the last Protestant church within he City limits, is a century old community institution, and is designated as a Historical -Cultural Resource raises the stakes considerably for the community.

    Would appreciate any thoghts you might have.

    Passtor Scott
    Crescent Heights UMC
    West Hollywood, California